Negligence

Negligence is a common, especially in legal language technical term. Together with the intent describes the negligence of the inner attitude of the offender towards the realized facts from him.

Both the civil and the criminal use of the term, the meaning does not have to be identical.

Germany

Civil law

The German civil law uses the concept of negligence with regard to the fault or Represented needing. It's there at the standard of liability for the Einstein marriage Need for own or other people's behavior. According to § 276 paragraph 2 BGB negligence is the out-of- Eight - Do " the diligence required in traffic". The negligence sets itself apart from the intent thereby suggesting that the result of the action has not been brought about volitional. This negligence may be present at all, it requires the preventability, the foreseeability of the right - or wrongful action and consequence arising therefrom. In addition, an alternative behavior in a given situation must be reasonable. The negligence standard is the objective due diligence, not the usual care. Those who participate in legal transactions must be able to trust that the other party acted with the diligence required for its activity. Can the other legal road users this from old-age, illness or lack of knowledge, etc. are not reasons, he violated the due diligence. Everyone has to, for example, can rely on a professional driver can control his vehicle safely. Has the driver but a reaction deficit, he can not lay down the required diligence on the day. With respect to the fault but can it not be credited liability mitigating this personal hardship. The Driver must, if he carries out his duties, being aware that he is actually and may at any time evince the requisite care.

Light and gross negligence

The civil law distinguishes between two types of negligence. Slight negligence i.S.d. § 276 paragraph 2 BGB is when the necessary care is disregarded. Gross negligence is not legally defined. You will be accepted if the required in legal due diligence was injured in an unusually high degree, or if obvious considerations were not employed.

A special case is familiar with the labor law: There, the Court distinguishes between simple negligence or ordinary negligence and lightest negligence.

Economic negligence concept

The negligence concept of economic analysis of law goes back to the American judge Learned Hand. The eponymous Learned Hand 's formula states that acts negligently, who shy away from risk avoidance costs to invest, which are lower than the expected value of the risk. Risk avoidance costs refer to the effort to prevent a risk ( V); the expected value of the risk is the potential for the occurrence of the risk of damage (S ) multiplied by the probability of its occurrence (q) dar.

Negligence is affirmative then when

V < Sq.

Criminal

The criminal law provides for criminal liability for negligence under § 15 of the Penal Code only if this is explicitly threatened with punishment.

German criminal law accepts the classification and definition of the unconscious and conscious negligence not expressly approved by the civil law; but the prevailing opinion and especially the jurisprudence lean on the § 276 para 2 BGB, which defines negligence as required in disregard of due diligence: essential components of negligence are therefore testing the violation of an objective duty of care and their recognizability. A negligent actor does not want to deliberately violate the law. In the exertion of all his spiritual powers he would have to recognize that his actions for a protected legal interest might have been dangerous. The fact - and thus the wrongdoing had in the concrete factual situation must therefore be erlangbar for the perpetrator. As part of the debt is continuing to ask for the subjective side of negligence: the perpetrator acted subjectively in breach of duty, although success was predictable just for him? An in advance of, inter alia, Schmid houses reasoned opinion, however, rejects this strict analogy of criminal negligence in civil law and defines the negligence much easier than not currently available, but the perpetrator in the concrete situation nevertheless potentially erlangbares not only fact - but also a sense of wrongdoing. The problem is in the criminal law the definition of criminal negligence from mere carelessness unpunished, and the distinction of Eventualvorsatz ( dolus eventualis ) and conscious negligence ( luxuria ).

Perpetration and negligence

It is controversial whether there is a distinction between perpetration and participation in the negligence action. The prevailing opinion was so far the unit personality principle, which denies such a differentiation. After the unit principle, each sticking out of a possible success negligent tort that caused the success of negligence. However, this was not maintained throughout. Note that in this context the doctrine of subrogation prohibition. More recently, a negligent complicity is increasingly accepted. This construction is based on the need, in cases where causality is not detectable to come by mittäterschaftliche attribution of Tatbeiträgen to a simple and secure criminal liability. It is doubtful how far a negligent complicity presupposes a common Tatentschluss. The prevailing opinion requires such a mutual commitment of mutual contributions. According to another view, it is sufficient if multiple people contribute to illicit work.

Conscious and unconscious negligence

Criminally between conscious and unconscious negligence is distinguished. In the conscious negligence (Latin luxuria ) expects the actor with the possible entry, but trust wrongful and reprehensible that the damage will not occur. The agent may not have success but considered acceptable, otherwise is conditional intent ( dolus eventualis ) ago. The unconscious negligence (Latin negligentia ) is characterized in that the agent 's success does not foresee, but him in the care required in traffic and could reasonably have been foreseen and prevented it.

The term comes from the Latin Luxuria and besides ostentation / abundance also means self-indulgence / cockiness. The ultimate significance of my lawyers, when they speak of Luxuria.

Special problems and cases

The frivolity ( feature of several successful qualified offenses) corresponds to the concept of gross negligence of the Civil Code, but it is here placed on the personal skills of the offender. The frivolity thus represents an increase of negligence

Decriminalization

The decriminalization of negligence offenses is always in the discussion. Against the decriminalization of negligent assault and manslaughter, however, speaks the protective effect of fundamental rights under Article 2 paragraph 2 sentence 1 in conjunction with Article 1, Section 1 of the Basic Law. However, under the observance of fundamental rights limitation of punishment is necessary because the criminal law only as a last resort (Latin: ultima ratio ) to be the state sanction. Given the ever evolving risks in a technology company, it may not always be a criminal ausufernderes therefore, because otherwise the commission of crimes is the norm and not remain an exception.